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Electronic execution of documents: Consultation

Introduction

This form accompanies the consultation paper on the electronic execution of documents,

available at https://www.lawcom.gov.uk/project/electronic-execution-of-documents/. Please

answer as many questions as you can, in as much detail as you can. However, you do not

need to answer all the questions.

Please save a copy of your completed form and email it back to us at electronic-

execution@lawcommission.gov.uk by 23 November 2018.

Where possible, it would be helpful if comments were sent using the online form at

https://consult.justice.gov.uk/law-commission/electronic-execution or using this form.

However, comments can also be sent in an email to electronic-

execution@lawcommission.gov.uk, or by post to: Commercial and Common Law Team, Law

Commission, 1st Floor, Tower, 52 Queen Anne’s Gate, London, SW1H 9AG.

Consultation principles

The Law Commission follows the Consultation Principles set out by the Cabinet Office,

which provide guidance on type and scale of consultation, duration, timing, accessibility and

transparency. The Principles are available on the Cabinet Office website at:

https://www.gov.uk/government/publications/consultation-principles-guidance

We treat all responses as public documents in accordance with the Freedom of

Information Act 2000 and we may include the names of respondents and attribute

comments in any publication relating to this consultation. If you want your submission to

remain confidential, you should contact us before sending your response. (Please note that

we disregard automatic IT-generated confidentiality statements.)

For information on how we handle your personal data, please see our Privacy Notice.

1st Floor, Tower 52 Queen Anne’s Gate

London

SW1H 9AG

020 3334 0200

electronic-execution@lawcommission.gov.uk

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Your details

Name

Organisation

Type of response Personal response

Response on behalf of above named organisation

Email address

Telephone number

If you want the information that you provide to be treated as confidential, please

explain to us why you regard the information as confidential. As explained above, we

will take full account of your explanation but cannot give an assurance that

confidentiality can be maintained in all circumstances.

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Electronic signatures and other preliminary questions

(Consultation Questions 1 to 6)

Question 1.

Our provisional conclusion is that an electronic signature is capable of satisfying a statutory

requirement for a signature under the current law, where there is an intention to

authenticate the document. Do consultees agree? (See paragraph 3.87 of the consultation

paper.)

Yes No Other

Question 2.

Our provisional conclusion is that the requirement under the current law that a deed must

be signed “in the presence of a witness” requires the physical presence of that witness. Do

consultees agree? (See paragraph 4.57 of the consultation paper.)

Yes No Other

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Question 3.

We welcome consultees’ views and experiences on how other jurisdictions have dealt with

the cross-border dimension of electronic execution. (See paragraph 6.19 of the

consultation paper.)

Question 4.

We believe that where specific provision is necessary in relation to certain types of

documents (for example, to protect vulnerable parties, particularly for lasting powers of

attorney), that is a matter for specific legislation or regulation, and not for the general law

of execution of documents. Do consultees agree? (See paragraph 6.41 of the consultation

paper.)

Yes No Other

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Question 5.

We consider that legislative reform is not necessary to confirm that an electronic signature

is capable of satisfying a statutory requirement for a signature. Do consultees agree? (See

paragraph 7.20 of the consultation paper.)

Yes No Other

Question 6.

We provisionally propose that an industry working group should be established, potentially

convened by Government, to consider practical, technical issues. Do consultees agree?

(See paragraph 7.28 of the consultation paper.)

Yes No Other

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Deeds (Consultation Questions 7 to 14)

Question 7.

We provisionally propose that it should be possible to witness an electronic signature via

video link and then attest the document. Do consultees agree? (See paragraph 8.32 of the

consultation paper.)

Yes No Other

Question 8.

If witnessing by video link is to be permitted, how do consultees consider the witness should

complete the attestation:

(1) Via a signing platform which the signatory and witness both log into?

(2) With the document being emailed to the witness by the signatory immediately after

signing?

(See paragraph 8.33 of the consultation paper.)

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Question 9.

Do consultees consider that it should be possible to “witness” an electronic signature

through an online signing platform in real time, without a video link or any direct

communication between the signatory and the witness? (See paragraph 8.42 of the

consultation paper.)

Yes No Other

Question 10.

Our view is that the witnessing and attestation requirement for electronic signatures on

deeds should not be replaced with a requirement for a particular type of technology, such

as a digital signature using Public Key Infrastructure. Do consultees agree? (See

paragraph 8.50 of the consultation paper.)

Yes No Other

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Question 11.

Do consultees think that there is a case for moving away from the traditional concepts of

witnessing and attestation in the context of deeds executed electronically, allowing for

electronic acknowledgement? (See paragraph 8.60 of the consultation paper.)

Yes No Other

Please expand on your answer.

(1) How should electronic acknowledgement be effected (for example, by email,

telephone, text message, in person)?

(2) Do consultees consider that there should be a prescribed period of time (for example,

24 hours) within which: (a) acknowledgement must occur after signing; and

(b) acknowledgement and witnessing must take place?

(3) How should the witness record the signatory’s acknowledgement?

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Question 12.

Our view is that the requirement that deeds must be delivered does not impede the

electronic execution of deeds in practice. Do consultees agree? (See paragraph 8.70 of

the consultation paper.)

Yes No Other

Question 13.

We consider that legislative reform is unnecessary and inappropriate to address the

implications of the Mercury decision. Do consultees agree? (See paragraph 8.83 of the

consultation paper.)

Yes No Other

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Question 14.

Do consultees think that a review of the law of deeds should be a future Law Commission

project? (See paragraph 8.88 of the consultation paper.)

Yes No Other

Impact of reform

Question 15.

We provisionally conclude that an electronic signature is capable of satisfying a statutory

requirement for a signature, provided there is an intention to authenticate a document. Do

consultees believe that this will result in increased confidence in the legality of electronic

execution in England and Wales? Is any more needed? (See paragraph 8.93 of the

consultation paper.)

Yes No Other

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Question 16.

What do consultees believe would be the financial value of increased confidence in the

legality of electronic execution in England and Wales? For example, do consultees think

there could be a reduction in transaction costs by as much as 10% to 30%? (See paragraph

8.94 of the consultation paper.)

Yes No Other

Question 17.

Do consultees agree that the Law Commission’s proposal to establish an industry working

group, to consider practical, technical issues, would do any of the following?

(See paragraph 8.95 of the consultation paper.)

(1) Provide benefits such as reduced transaction costs? If so, how much?

(2) Provide non-monetary benefits? If so, what benefits?

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Question 18.

We have canvassed several options for electronically executing deeds without the physical

presence of a witness. We welcome evidence from consultees on the benefits (for

example, reduced delays in completing transactions) or costs which might result from the

following. (See paragraph 8.96 of the consultation paper.)

(1) The capacity to execute deeds electronically without the physical presence of a

witness.

(2) Any or all of the specific options for electronically executing deeds described

above, namely via video link, signing platform, or acknowledgement.